STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
December 29, 1972
Gordon Nelson, Executive Secretary
Associated School Boards of South Dakota
Huron, South Dakota 57350
OFFICIAL OPINION NO. 72-74
School Board may pay salaries to teachers serving as legislators.
Dear Mr. Nelson:
We have received from you a request for an opinion on behalf of the Associated School Boards of South Dakota, a state agency created by SDCL Ch. 3-9, based upon the following factual situation:
As in the past, several school teachers have been elected to the current Legislature. Several public groups have suggested that school board members may become personally liable for dual compensation of public employees, should they permit: these teachers to draw salaries at the same time they are drawing legislative pay. Also, several school districts involved, have received conflicting legal opinions regarding the payment of school district salary compensation for teachers who are serving in the State Legislature.
In connection with this factual situation, you have asked the following questions:
1. Does the section on dual compensation in SDCL 3-8-4 prohibit a school district from paying to a legislator-teacher all or part of his contractual salary during the period of time he serves as a state legislator?
2. Can an individual school board member be held personally and legally liable for the payment of such salary?
3. Where no previous policy existed, may a school board adopt a policy granting continued employment and a leave of absence without pay for the time necessary to serve as a state legislator? institution or department thereof.
SDCL 3 8-4 provides:
DUAL COMPENSATION PROHIBITED.-No person receiving a salary or per diem payable out of the state treasury or from the funds of any state institution or department, shall, during the period for which such salary Or per diem has been or is to be paid, receive any other salary or per diem from the state or any institution or department thereof.
Prior Attorneys General have construed this section many times and have consistently held that employees who perform work outside of their usual course of employment that is not performed during their hours of employment, may collect additional compensation. See 1967-68 AGR 171, 1957-58 AGR 61, 1953-54 AGR 112, 1947-48 AGR 26 and 1943-44 AGR 215.
I concur with the opinions of my predecessors.
Members of a board may feel that the experience of serving in the Legislature is highly desirable and will increase the teacher's competency. Under present statutes, I can see nothing that would prohibit a school board from paying all or part of a teacher's salary in such cases.
In answer to your second question, I would like to draw your attention to SDCL 13-16-25 which provides (in part):
If any moneys belonging to any district is unlawfully expended ... Any taxpayer of the district: may recover such money from the officer so expending it.
The answer to your third question is, YES. The Legislature has placed the statutory duty of running the schools upon individual school boards. Where no policy regarding leave without pay has previously been in existence, school boards may enact one.
Respectfully submitted,
Gordon Mydland
Attorney General
